EXHIBIT 99.16
SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of September 13, 2005 (this
"AGREEMENT"), is entered into by and among FP TECHNOLOGYHOLDINGS, INC. a
Delaware corporation (the "DEBTOR") and the TRIDENT GROWTH FUND, L.P., a
Delaware limited partnership, (the "SECURED PARTY"), the Holder of that certain
12% Senior Secured Convertible Debenture due September 13, 2006 (or such earlier
contingent date as set forth therein) in the original aggregate principal amount
of $2,000,000 (the "DEBENTURE"), issued by Debtor to the Secured Party in
connection with that certain Securities Purchase Agreement entered into by and
between the Debtor and the Secured Party.
W I T N E S S E T H:
WHEREAS, pursuant to the Debenture, the Secured Party has agreed to
extend certain loans described above to the Debtor as evidenced by the
Debenture; and
WHEREAS, in order to induce the Secured Party to extend the loans
evidenced by the Debenture, the Debtor has agreed to execute and deliver to the
Secured Party this Agreement and to grant the Secured Party a perfected first
priority security interest in all property of the Debtor to secure the prompt
payment, performance and discharge in full of all of the Debtor's obligations
under the Debenture.
NOW, THEREFORE, in consideration of the agreements herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the meanings set forth in this Section 1. Terms used but not
otherwise defined in this Agreement that are defined in Article 9 of the UCC
(such as "general intangibles" and "proceeds") shall have the respective
meanings given such terms in Article 9 of the UCC, and capitalized terms not
otherwise defined herein shall have the meaning given them in the Securities
Purchase Agreement described above.
(a) "Collateral" means the collateral in which the Secured
Party is granted a security interest by this Agreement and which shall
include the following, whether presently owned or existing or hereafter
acquired or coming into existence, and all additions and accessions
thereto and all substitutions and replacements thereof, and all
proceeds, products and accounts thereof, including, without limitation,
all proceeds from the sale or transfer of the Collateral and of
insurance covering the same and of any tort claims in connection
therewith:
(i) All Goods of the Debtor, including, without
limitations, all machinery, equipment, computers, motor
vehicles, trucks, tanks, boats, ships, appliances, furniture,
special and general tools, fixtures, test and quality control
devices and other equipment of every kind and nature and
wherever situated, together with all documents of title and
documents representing the same, all additions and accessions
thereto, replacements therefor, all parts therefor, and all
substitutes for any of the foregoing and all other items used
and useful in connection with the Debtor's businesses and all
improvements thereto (collectively, the "EQUIPMENT"); and
(ii) All Inventory of the Debtor; and
(iii) All of the Debtor's contract rights and general
intangibles, including, without limitation, all partnership
interests, stock or other securities, licenses, distribution
and other agreements, computer software (whether
"off-the-shelf", licensed from any third party or developed by
Debtor) computer software development rights, leases,
franchises, customer lists, quality control procedures, grants
and rights, goodwill, trademarks, service marks, trade styles,
trade names, patents, patent applications, copyrights, deposit
accounts and income tax refunds (collectively, the "GENERAL
INTANGIBLES"); and
(iv) All Receivables of the Debtor including all
insurance proceeds, and rights to refunds or indemnification
whatsoever owing, together with all instruments, all documents
of title representing any of the foregoing, all rights in any
merchandising, goods, equipment, motor vehicles and trucks
which any of the same may represent, and all right, title,
security and guaranties with respect to each Receivable,
including any right of stoppage in transit; and
(v) All of the Debtor's documents, instruments and
chattel paper, files, records, books of account, business
papers, computer programs and the products and proceeds of all
of the foregoing Collateral set forth in clauses (i)-(iv)
above.
(b) "Obligations" means all of the Debtor's obligations under
the Transaction Documents, in each case, whether now or hereafter
existing, voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated, whether or not jointly owed
with others, and whether or not from time to time decreased or
extinguished and later increased, created or incurred, and all or any
portion of such obligations or liabilities that are paid, to the extent
all or any part of such payment is avoided or recovered directly or
indirectly from the Secured Party as a preference, fraudulent transfer
or otherwise as such obligations may be amended, supplemented,
converted, extended or modified from time to time.
(c) "UCC" means the Uniform Commercial Code and or any other
applicable law of any jurisdiction (including, without limitation, the
state of Nevada and New York) as to any Collateral located therein.
2. GRANT OF PERFECTED FIRST PRIORITY SECURITY INTEREST. As an
inducement for the Secured Party to extend the loans as evidenced by the
Debenture and to secure the complete and timely payment, performance and
discharge in full, as the case may be, of all of the Obligations, the Debtor
hereby unconditionally and irrevocably pledges, grants and hypothecates to the
Secured Party a continuing and perfected first priority security interest in and
to, a lien upon and a right of set-off against all of their respective right,
title and interest of whatsoever kind and nature in and to, the Collateral (the
"SECURITY INTEREST").
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3. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF THE
DEBTOR. The Debtor represents and warrants to, and covenants and agrees with,
the Secured Party as follows:
(a) The Debtor has the requisite corporate power and authority
to enter into this Agreement and otherwise to carry out its obligations
hereunder. The execution, delivery and performance by the Debtor of
this Agreement and the filings contemplated therein have been duly
authorized by all necessary action on the part of the Debtor and no
further action is required by the Debtor.
(b) The Debtor represents and warrants that they have no place
of business or offices where their respective books of account and
records are kept (other than temporarily at the offices of its
attorneys or accountants) or places where Collateral is stored or
located, except as set forth on Schedule A attached hereto.
(c) The Debtor is the sole owner of the Collateral (except for
non-exclusive licenses granted by the Debtor in the ordinary course of
business), free and clear of any liens, security interests,
encumbrances, rights or claims, and are fully authorized to grant the
Security Interest in and to pledge the Collateral. There is not on file
in any governmental or regulatory authority, agency or recording office
an effective financing statement, security agreement, license or
transfer or any notice of any of the foregoing (other than those that
will be filed in favor of the Secured Party pursuant to this Agreement)
covering or affecting any of the Collateral. So long as this Agreement
shall be in effect, Debtor shall not execute and shall not knowingly
permit to be on file in any such office or agency any such financing
statement or other document or instrument (except to the extent filed
or recorded in favor of the Secured Party pursuant to the terms of this
Agreement).
(d) No part of the Collateral has been judged invalid or
unenforceable. No written claim has been received that any Collateral
or Debtor's use of any Collateral violates the rights of any third
party. There has been no adverse decision to Debtor's claim of
ownership rights in or exclusive rights to use the Collateral in any
jurisdiction or to Debtor's right to keep and maintain such Collateral
in full force and effect, and there is no proceeding involving said
rights pending or, to the best knowledge of the Debtor, threatened
before any court, judicial body, administrative or regulatory agency,
arbitrator or other governmental authority.
(e) The Debtor shall at all times maintain its books of
account and records relating to the Collateral at its principal place
of business and its Collateral at the locations set forth on Schedule A
attached hereto and may not relocate such books of account and records
or tangible Collateral unless it delivers to the Secured Party at least
30 days prior to such relocation (i) written notice of such relocation
and the new location thereof (which must be within the United States)
and (ii) evidence that appropriate financing statements under the UCC
and other necessary documents have been filed and recorded and other
steps have been taken to perfect the Security Interest to create in
favor of the Secured Party a valid, perfected and continuing perfected
first priority lien in the Collateral.
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(f) This Agreement creates in favor of the Secured Party a
valid security interest in the Collateral securing the payment and
performance of the Obligations and, upon making the filings described
in the immediately following sentence, a perfected first priority
security interest in such Collateral.
(g) The Debtor hereby authorizes the Secured Party to file one
or more financing statements under the UCC, with respect to the
Security Interest with the proper filing and recording agencies in any
jurisdiction deemed proper by them.
(h) The execution, delivery and performance of this Agreement
by the Debtor does not conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or
both) of, any agreement, credit facility, debt or other instrument
(evidencing Debtor's debt or otherwise) or other understanding to which
Debtor is a party or by which any property or asset of the Debtor is
bound or affected. No consent (including, without limitation, from
stockholders or creditors of the Debtor) is required for the Debtor to
enter into and perform its obligations hereunder.
(i) The Debtor shall at all times maintain the liens and
Security Interest provided for hereunder as valid and perfected first
priority liens and security interests in the Collateral in favor of the
Secured Party until this Agreement and the Security Interest hereunder
shall be terminated pursuant to Section 11 hereof. The Debtor hereby
agrees to defend the same against any and all persons. The Debtor shall
safeguard and protect all Collateral for the account of the Secured
Party. At the request of the Secured Party, the Debtor will sign and
deliver to the Secured Party at any time or from time to time one or
more financing statements pursuant to the UCC in form reasonably
satisfactory to the Secured Party and will pay the cost of filing the
same in all public offices wherever filing is, or is deemed by the
Secured Party to be, necessary or desirable to effect the rights and
obligations provided for herein. Without limiting the generality of the
foregoing, the Debtor shall pay all fees, taxes and other amounts
necessary to maintain the Collateral and the Security Interest
hereunder, and the Debtor shall obtain and furnish to the Secured Party
from time to time, upon demand, such releases and/or subordinations of
claims and liens which may be required to maintain the priority of the
Security Interest hereunder.
(j) The Debtor will not transfer, pledge, hypothecate,
encumber, license (except for non-exclusive licenses granted by a
Debtor in its ordinary course of business and sales of inventory), sell
or otherwise dispose of any of the Collateral without the prior written
consent of the Secured Party.
Page 4
(k) The Debtor shall keep and preserve its Equipment,
Inventory and other tangible Collateral in good condition, repair and
order and shall not operate or locate any such Collateral (or cause to
be operated or located) in any area excluded from insurance coverage.
(l) The Debtor shall, within ten (10) days of obtaining
knowledge thereof, advise the Secured Party promptly, in sufficient
detail, of any substantial change in the Collateral, and of the
occurrence of any event which would have a material adverse effect on
the value of the Collateral or on the Secured Party's security interest
therein.
(m) The Debtor shall promptly execute and deliver to the
Secured Party such further deeds, mortgages, assignments, security
agreements, financing statements or other instruments, documents,
certificates and assurances and take such further action as the Secured
Party may from time to time request and may in its sole discretion deem
necessary to perfect, protect or enforce its security interest in the
Collateral including, without limitation, if applicable, the execution
and delivery of a separate security agreement with respect to each
Debtor's intellectual property ("INTELLECTUAL PROPERTY SECURITY
AGREEMENT") in which the Secured Party has been granted a security
interest hereunder, substantially in a form acceptable to the Secured
Party, which Intellectual Property Security Agreement, other than as
stated therein, shall be subject to all of the terms and conditions
hereof.
(n) The Debtor shall permit the Secured Party and its
representatives and agents to inspect the Collateral at any time, and
to make copies of records pertaining to the Collateral as may be
requested by the Secured Party from time to time.
(o) The Debtor shall take all steps reasonably necessary to
diligently pursue and seek to preserve, enforce and collect any rights,
claims, causes of action and accounts receivable in respect of the
Collateral.
(p) The Debtor shall promptly notify the Secured Party in
sufficient detail upon becoming aware of any attachment, garnishment,
execution or other legal process levied against any Collateral and of
any other information received by the Debtor that may materially affect
the value of the Collateral, the Security Interest or the rights and
remedies of the Secured Party hereunder.
(q) All information heretofore, herein or hereafter supplied
to the Secured Party by or on behalf of the Debtor with respect to the
Collateral is accurate and complete in all material respects as of the
date furnished.
(r) The Debtor shall at all times preserve and keep in full
force and effect their respective valid existence and good standing and
any rights and franchises material to its business.
Page 5
(s) The Debtor will not change its name, corporate structure,
or identity, or add any new fictitious name unless it provides at least
30 days prior written notice to the Secured Party of such change and,
at the time of such written notification, such Debtor provides any
financing statements or fixture filings necessary to perfect and
continue perfected the perfected first priority Security Interest
granted and evidenced by this Agreement.
(t) The Debtor may not consign any of its Inventory or sell
any of its Inventory on xxxx and hold, sale or return, sale on
approval, or other conditional terms of sale without the consent of the
Secured Party which shall not be unreasonably withheld..
(u) The Debtor may not relocate its chief executive office to
a new location without providing 30 days prior written notification
thereof to the Secured Party and so long as, at the time of such
written notification, the Debtor provides any financing statements or
fixture filings necessary to perfect and continue perfected the
perfected first priority Security Interest granted and evidenced by
this Agreement.
4. Defaults. The following events shall be "EVENTS OF DEFAULT":
(a) The occurrence of an Event of Default (as defined in the
Debenture) under any Debenture;
(b) Any representation or warranty of Debtor in this Agreement
shall prove to have been incorrect in any material respect when made;
(c) The failure by Debtor to observe or perform any of its
obligations hereunder for five (5) days after delivery to Debtor of
notice of such failure by or on behalf of a Secured Party; or
(d) If any provision of this Agreement shall at any time for
any reason be declared to be null and void, or the validity or
enforceability thereof shall be contested by Debtor, or a proceeding
shall be commenced by Debtor, or by any governmental authority having
jurisdiction over Debtor, seeking to establish the invalidity or
unenforceability thereof, or Debtor shall deny that Debtor has any
liability or obligation purported to be created under this Agreement.
5. Duty To Hold In Trust. Upon the occurrence of any Event of
Default and at any time thereafter, the Debtor shall, upon receipt of any
revenue, income or other sums subject to the Security Interest, whether payable
pursuant to the Debenture or otherwise, or of any check, draft, note, trade
acceptance or other instrument evidencing an obligation to pay any such sum,
hold the same in trust for the Secured Party and shall forthwith endorse and
transfer any such sums or instruments, or both, to the Secured Party for
application to the satisfaction of the Obligations.
6. Rights and Remedies Upon Default. Upon the occurrence of any
Event of Default and at any time thereafter, the Secured Party shall have the
right to exercise all of the remedies conferred hereunder and under the
Debenture, and the Secured Party shall have all the rights and remedies of a
secured party under the UCC. Without limitation, the Secured Party shall have
the following rights and powers:
Page 6
(a) The Secured Party shall have the right to take possession
of the Collateral and, for that purpose, enter, with the aid and
assistance of any person, any premises where the Collateral, or any
part thereof, is or may be placed and remove the same, and the Debtor
shall assemble the Collateral and make it available to the Secured
Party at places which the Secured Party shall reasonably select,
whether at the Debtor's premises or elsewhere, and make available to
the Secured Party, without rent, all of the Debtor's respective
premises and facilities for the purpose of the Secured Party taking
possession of, removing or putting the Collateral in saleable or
disposable form.
(b) The Secured Party shall have the right to operate the
business of the Debtor using the Collateral and shall have the right to
assign, sell, lease or otherwise dispose of and deliver all or any part
of the Collateral, at public or private sale or otherwise, either with
or without special conditions or stipulations, for cash or on credit or
for future delivery, in such parcel or parcels and at such time or
times and at such place or places, and upon such terms and conditions
as the Secured Party may deem commercially reasonable, all without
(except as shall be required by applicable statute and cannot be
waived) advertisement or demand upon or notice to the Debtor or right
of redemption of a Debtor, which are hereby expressly waived. Upon each
such sale, lease, assignment or other transfer of Collateral, the
Secured Party may, unless prohibited by applicable law which cannot be
waived, purchase all or any part of the Collateral being sold, free
from and discharged of all trusts, claims, right of redemption and
equities of the Debtor, which are hereby waived and released.
7. Applications of Proceeds. The proceeds of any such sale, lease or
other disposition of the Collateral hereunder shall be applied first, to the
expenses of retaking, holding, storing, processing and preparing for sale,
selling, and the like (including, without limitation, any taxes, fees and other
costs incurred in connection therewith) of the Collateral, to the reasonable
attorneys' fees and expenses incurred by the Secured Party in enforcing its
rights hereunder and in connection with collecting, storing and disposing of the
Collateral, and then to satisfaction of the Obligations to the Secured Party
based on its then outstanding principal amount of the Debenture, and to the
payment of any other amounts required by applicable law, after which the Secured
Party shall pay to the applicable Debtor any surplus proceeds. If, upon the
sale, license or other disposition of the Collateral, the proceeds thereof are
insufficient to pay all amounts to which the Secured Party is legally entitled,
the Debtor will be liable for the deficiency, together with interest thereon, at
the rate of 18% per annum or the lesser amount permitted by applicable law (the
"DEFAULT RATE"), and the reasonable fees of any attorneys employed by the
Secured Party to collect such deficiency. To the extent permitted by applicable
law, the Debtor waives all claims, damages and demands against the Secured Party
arising out of the repossession, removal, retention or sale of the Collateral,
unless due to the gross negligence or willful misconduct of the Secured Party.
Page 7
8. Costs and Expenses. The Debtor agrees to pay all reasonable
out-of-pocket fees, costs and expenses incurred in connection with any filing
required hereunder, including without limitation, any financing statements
pursuant to the UCC, continuation statements, partial releases and/or
termination statements related thereto or any expenses of any searches
reasonably required by the Secured Party. The Debtor shall also pay all other
claims and charges which in the reasonable opinion of the Secured Party might
prejudice, imperil or otherwise affect the Collateral or the Security Interest
therein. The Debtor will also, upon demand, pay to the Secured Party the amount
of any and all reasonable expenses, including the reasonable fees and expenses
of its counsel and of any experts and agents, which the Secured Party may incur
in connection with (i) the enforcement of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Collateral, or (iii) the exercise or enforcement of any of the rights of
the Secured Party under the Debenture. Until so paid, any fees payable hereunder
shall be added to the principal amount of the Debenture and shall bear interest
at the Default Rate.
9. Responsibility for Collateral. The Debtor assumes all liabilities
and responsibility in connection with all Collateral, and the Obligations in no
way be affected or diminished by reason of the loss, destruction, damage or
theft of any of the Collateral or its unavailability for any reason.
10. Security Interest Absolute. All rights of the Secured Party and
all Obligations of the Debtor hereunder, shall be absolute and unconditional,
irrespective of: (a) any lack of validity or enforceability of this Agreement,
the Debenture or any agreement entered into in connection with the foregoing, or
any portion hereof or thereof; (b) any change in the time, manner or place of
payment or performance of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any departure
from the Debenture or any other agreement entered into in connection with the
foregoing; (c) any exchange, release or nonperfection of any of the Collateral,
or any release or amendment or waiver of or consent to departure from any other
collateral for, or any guaranty, or any other security, for all or any of the
Obligations; (d) any action by the Secured Party to obtain, adjust, settle and
cancel in its sole discretion any insurance claims or matters made or arising in
connection with the Collateral; or (e) any other circumstance which might
otherwise constitute any legal or equitable defense available to a Debtor, or a
discharge of all or any part of the Security Interest granted hereby. Until the
Obligations shall have been paid and performed in full, the rights of the
Secured Party shall continue even if the Obligations are barred for any reason,
including, without limitation, the running of the statute of limitations or
bankruptcy. The Debtor expressly waives presentment, protest, notice of protest,
demand, notice of nonpayment and demand for performance. In the event that at
any time any transfer of any Collateral or any payment received by the Secured
Party hereunder shall be deemed by final order of a court of competent
jurisdiction to have been a voidable preference or fraudulent conveyance under
the bankruptcy or insolvency laws of the United States, or shall be deemed to be
otherwise due to any party other than the Secured Party, then, in any such
event, the Debtor's obligations hereunder shall survive cancellation of this
Agreement, and shall not be discharged or satisfied by any prior payment thereof
and/or cancellation of this Agreement, but shall remain a valid and binding
obligation enforceable in accordance with the terms and provisions hereof. The
Debtor waives all right to require the Secured Party to proceed against any
other person or to apply any Collateral which the Secured Party may hold at any
time, or to marshal assets, or to pursue any other remedy. The Debtor waives any
defense arising by reason of the application of the statute of limitations to
any obligation secured hereby.
Page 8
11. Term of Agreement. This Agreement and the Security Interest
shall terminate on the date on which all payments under the Debenture have been
made in full or have been satisfied and all other Obligations have been paid or
discharged. Upon such termination, the Secured Party, at the request and at the
expense of the Debtor, will join in executing any termination statement with
respect to any financing statement executed and filed pursuant to this
Agreement.
12. Power of Attorney; Further Assurances.
(a) The Debtor authorizes the Secured Party, and does hereby
make, constitute and appoint the Secured Party and its respective
officers, agents, successors or assigns with full power of
substitution, as the Debtor's true and lawful attorney-in-fact, with
power, in the name of the Secured Party or the Debtor, to, after the
occurrence and during the continuance of an Event of Default, (i)
endorse any note, checks, drafts, money orders or other instruments of
payment (including payments payable under or in respect of any policy
of insurance) in respect of the Collateral that may come into
possession of the Secured Party; (ii) to sign and endorse any financing
statement pursuant to the UCC or any invoice, freight or express xxxx,
xxxx of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection with accounts, and
other documents relating to the Collateral; (iii) to pay or discharge
taxes, liens, security interests or other encumbrances at any time
levied or placed on or threatened against the Collateral; (iv) to
demand, collect, receipt for, compromise, settle and xxx for monies due
in respect of the Collateral; and (v) generally, to do, at the option
of the Secured Party, and at the expense of the Debtor, at any time, or
from time to time, all acts and things which the Secured Party deem
necessary to protect, preserve and realize upon the Collateral and the
Security Interest granted therein in order to effect the intent of this
Agreement and the Debenture all as fully and effectually as the Debtor
might or could do; and the Debtor hereby ratifies all that said
attorney shall lawfully do or cause to be done by virtue hereof. This
power of attorney is coupled with an interest and shall be irrevocable
for the term of this Agreement and thereafter as long as any of the
Obligations shall be outstanding.
(b) On a continuing basis, the Debtor will make, execute,
acknowledge, deliver, file and record, as the case may be, with the
proper filing and recording agencies in any jurisdiction, including,
without limitation, the jurisdictions indicated on Schedule B attached
hereto, all such instruments, and take all such action as may
reasonably be deemed necessary or advisable, or as reasonably requested
by the Secured Party, to perfect the Security Interest granted
hereunder and otherwise to carry out the intent and purposes of this
Agreement, or for assuring and confirming to the Secured Party the
grant or perfection of a perfected first priority security interest in
all the Collateral under the UCC.
(c) The Debtor hereby irrevocably appoints the Secured Party
as the Debtor's attorney-in-fact, with full authority in the place and
instead of the Debtor and in the name of the Debtor, from time to time
in the Secured Party's discretion, to take any action and to execute
any instrument which the Secured Party may deem necessary or advisable
to accomplish the purposes of this Agreement, including the filing, in
its sole discretion, of one or more financing or continuation
statements and amendments thereto, relative to any of the Collateral
without the signature of the Debtor where permitted by law.
Page 9
13. Notices. All notices, requests, demands and other communications
hereunder shall be subject to the notice provision of the Purchase Agreement.
14. Other Security. To the extent that the Obligations are now or
hereafter secured by property other than the Collateral or by the guarantee,
endorsement or property of any other person, firm, corporation or other entity,
then the Secured Party shall have the right, in its sole discretion, to pursue,
relinquish, subordinate, modify or take any other action with respect thereto,
without in any way modifying or affecting any of the Secured Party's rights and
remedies hereunder.
15. Best Efforts for Licensed Collateral. Notwithstanding any other
provision contained herein or any of the Transaction Documents, upon the
occurrence of an Event of Default, the Debtor hereby agrees that with respect to
any part of the Collateral which may require the consent of any third party or
third parties in order for Debtor to transfer and/or convey its interest in and
to such Collateral to the Secured Party, as may be required in accordance
herewith, Debtor agrees to and shall use its best efforts to obtain such
consents or approvals in as expedient manner as possible.
16. Miscellaneous.
(a) No course of dealing between the Debtor and the Secured
Party, nor any failure to exercise, nor any delay in exercising, on the
part of the Secured Party, any right, power or privilege hereunder or
under the Debenture shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder
or thereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
(b) All of the rights and remedies of the Secured Party with
respect to the Collateral, whether established hereby or by the
Debenture or by any other agreements, instruments or documents or by
law shall be cumulative and may be exercised singly or concurrently.
(c) This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and is intended to
supersede all prior negotiations, understandings and agreements with
respect thereto. Except as specifically set forth in this Agreement, no
provision of this Agreement may be modified or amended except by a
written agreement specifically referring to this Agreement and signed
by the parties hereto.
Page 10
(d) In the event any provision of this Agreement is held to be
invalid, prohibited or unenforceable in any jurisdiction for any
reason, unless such provision is narrowed by judicial construction,
this Agreement shall, as to such jurisdiction, be construed as if such
invalid, prohibited or unenforceable provision had been more narrowly
drawn so as not to be invalid, prohibited or unenforceable. If,
notwithstanding the foregoing, any provision of this Agreement is held
to be invalid, prohibited or unenforceable in any jurisdiction, such
provision, as to such jurisdiction, shall be ineffective to the extent
of such invalidity, prohibition or unenforceability without
invalidating the remaining portion of such provision or the other
provisions of this Agreement and without affecting the validity or
enforceability of such provision or the other provisions of this
Agreement in any other jurisdiction.
(e) No waiver of any breach or default or any right under this
Agreement shall be considered valid unless in writing and signed by the
party giving such waiver, and no such waiver shall be deemed a waiver
of any subsequent breach or default or right, whether of the same or
similar nature or otherwise.
(f) This Agreement shall be binding upon and inure to the
benefit of each party hereto and its successors and assigns.
(g) Each party shall take such further action and execute and
deliver such further documents as may be necessary or appropriate in
order to carry out the provisions and purposes of this Agreement.
(h) All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the
State of Texas, without regard to the principles of conflicts of law
thereof. Each party agrees that all proceedings concerning the
interpretations, enforcement and defense of the transactions
contemplated by this Agreement and the Debenture (whether brought
against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in Dallas, Texas.
Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in Dallas, Texas
for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any proceeding,
any claim that it is not personally subject to the jurisdiction of any
such court, that such proceeding is improper. Each party hereto hereby
irrevocably waives personal service of process and consents to process
being served in any such proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all
right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. If
either party shall commence a proceeding to enforce any provisions of
this Agreement, then the prevailing party in such proceeding shall be
reimbursed by the other party for its reasonable attorneys fees and
other costs and expenses incurred with the investigation, preparation
and prosecution of such proceeding.
Page 11
(i) This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original and, all of which taken together shall constitute one and the
same Agreement. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile
signature were the original thereof.
[SIGNATURE PAGES FOLLOW]
Page 12
IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed on the day and year first above written.
DEBTOR
FP TECHNOLOGY HOLDINGS, INC. Address for Notice and Delivery:
--------------------------------
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
By:__________________________________________
Name:
Title:
SECURED PARTY
TRIDENT GROWTH FUND, L.P. Address for Notice and Delivery:
--------------------------------
700 Gemini
By: TRIDENT MANAGEMENT, LLC, its Xxxxxxx, XX 00000
GENERAL PARTNER Attn: Xxxxx St. Xxxxxx
By:__________________________________________
Name:
Title:
Page 13
Security Agreement (Firepond), Schedules
SCHEDULE A
Principal Place of Business of Debtor:
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Locations Where Collateral is Located or Stored:
-----------------------------------------------
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Page 14
SCHEDULE B
State of Delaware
Page 15
